Kerala High Court
Shafi vs State Of Kerala on 7 July, 2021
Author: K.Haripal
Bench: K.Haripal
B.A. No.3159/2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE K.HARIPAL
WEDNESDAY, THE 7TH DAY OF JULY 2021 / 16TH ASHADHA, 1943
BAIL APPL. NO. 3159 OF 2021
CRIME NO.114/2021 TOWN WEST POLICE STATION, THRISSUR
PETITIONER/ACCUSED:
SHAFI
AGED 28 YEARS, S/O.SHAHUL HAMEED,
SHA MANZIL, KANJIRANGADI,
KOORKKENCHERY VILLAGE,
THRISSUR, PIN - 680007
BY ADVS.
SRUTHY N. BHAT
SRI.P.VIJAYA BHANU (SR.)
SRI.VIPIN NARAYAN
RESPONDENT/STATE
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA
ERNAKULAM, PIN - 682031
BY SR. PUBLIC PROSECUTOR SRI. SANTHOSH PETER
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.06.2021,
THE COURT ON 07.07.2021 DELIVERED THE FOLLOWING:
B.A. No.3159/2021 2
ORDER
This is an application for regular bail filed under section 439 of the Code of Criminal Procedure by the sole accused in crime No.114/2021 of Thrissur Town West police station.
2. The crime was registered on 06.02.2021 at 23:09 hours, after detecting an offence under the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The precise allegation against the the accused, the petitioner, is that on 06.02.2021 at about 7.10 p.m. while Saleesh N.S. who is the Station House Officer of West police station Thrissur city was engaged in evening patrol duty, got reliable information about possession of narcotic drug by someone in Thrissur town, in front of a textile show room by name Laa Roza Boutique. The information was conveyed to him by one Sub Inspector Gladston, who is one of the members of the DANSAF working under the C Branch ACP of Thrissur district. Immediately he sent an official communication to the Assistant Commissioner of Police under Section 42 of the NDPS Act and proceeded to the said place. He reached in front of the said boutique at 7.30 p.m. Then the said Suvrathakumar and other members of the B.A. No.3159/2021 3 DANSAF were there. One person was also seen near him. There was a red colour scooter, beside them. When enquired, Suvrathakumar told that they were also engaged in patrol duty and at about 7.00 p.m. in front of the said shop they intercepted the other person and found trying to conceal some narcotic drug inside the scooter, that they noticed that he had kept in his right folded palm four plastic packets. Though he was perplexed and tried to conceal it, when his palm was unfolded, four polythene covers were found inside it. Three covers contained white crystal granules and the other contained stamp like item. When asked as to what was the crystal granule like item, he admitted that it is MDMA and the stamp like item is LSD and that was how he caused to communicate through Sub Inspector Gladston and alerted the Inspector.
3. Going by the seizure mahazar produced along with the petition, Annexure 2, it is seen that on the basis of the intimation received the Inspector and party on reaching the place in the M.G. Road, questioned the said person and then he confessed that he carried MDMA and LSD with him. On examination he also found that it is MDMA and LSD. Going by the mahazar, in order to ascertain whether the said person had carried further offensive or B.A. No.3159/2021 4 narcotic drugs in his person, his body search had to be conducted; thus enquiry was made as to whether his body search is to be conducted in the presence of a gazetted officer or a Magistrate. Such an intimation was given to him orally as well as in writing and then he had reportedly told that he does not require the presence of another gazetted officer or Magistrate and thus his body was searched. That was how the crime was registered alleging offence under Section 22(c) of the NDPS Act.
4. The petitioner was arrested along with the contraband on 06.02.2021 and since then he is in judicial custody. He moved the learned Sessions Judge Thrissur in Crl.M.P. No.18/2021 seeking release on bail, which was not found favour with him and thus he has approached this Court under Section 439 of the Cr.P.C.
5. I heard the learned counsel for the petitioner as well as the learned Public Prosecutor.
6. The learned counsel for the petitioner submits that he is in custody for more than 114 days, he is a person having no such antecedents. According to the learned counsel, the seizure is vitiated by not following the procedural formalities and therefore, the petitioner is entitled to be released on bail. B.A. No.3159/2021 5 According to the learned counsel, in the light of the fact that Section 50 of the NDPS Act was not complied before seizing the item, embargo under section 37 of the NDPS Act cannot work against him. The learned counsel also relied on the decisions reported in Basant Balram v. State of Kerala [2019 (1) KLT 523] and Chalam Sheikh v. State of Kerala [2020 (4) KLT 164]. 6.
7. The learned Public Prosecutor has made available the case diary for perusal.
8. I have perused the case diary also. The petitioner now faces allegations under Sections 22(b) and 22(c) of the NDPS Act. The allegation is that he had carried with him 2.20 grams of MDMA and 0.145 grams of LSD in his possession which was seized in the presence of independent witnesses from the public road in front of Laa Roza Boutique in Thrissur town. He was arrested along with the contraband and since then is in judicial custody.
9. No doubt, possessing 2.20 grams of MDMA will attract offence under section 22(b) of the NDPS Act whereas 0.145 grams of LSD is commercial quantity as per the notification issued under sub clause (viia) and (xxiiia) of section 2 of the Act. Therefore, prima facie there are reasons to B.A. No.3159/2021 6 think that he had been in possession of 0.145 grams of LSD also, which is sufficient to attract section 22(c) of the NDPS Act. All the same, the specific case of the petitioner, as submitted by the learned counsel that the arrest was made without following Section 50 of the NDPS Act. On the other hand, faint attempts were made by the learned Public Prosecutor to say that he was given oral as well as written intimation regarding his right to be searched in the presence of a gazetted officer or a Magistrate and that he had stated that he does not require the presence of such gazetted officer or Magistrate and therefore such a plea is not liable to be raised at this point of time.
10. The allegations against the petitioner are very serious. If, after trial, the matter ends in conviction, the petitioner will have to suffer rigorous imprisonment for ten years and also liable to fine which shall not be less than Rs.1 lakh, and which may extend to Rs.2 lakhs. The Hon'ble Supreme Court in numerous cases has stated that when the gravity of the offence is more, responsibility of the investigating agency is also higher, to follow all the procedural formalities. It is true that when offence under Section 22(c) is also attracted, the embargo under Section 37 of the Act will come into play. In other words, there is a statutory injunction against the Court in granting bail B.A. No.3159/2021 7 to such a person, if the allegations are one falling under section 22(c). The other conditions are that such an application should be considered only after giving opportunity to the Public Prosecutor to oppose the application and also that the court should be satisfied that there are no reasonable grounds to believe that he is not guilty of such offence. Similarly, it is also important that the court should be satisfied that in the event of granting bail, he shall not involve himself in repeating such offences. Here, certainly the learned Public Prosecutor has opposed the application. But the question is, whether there are reasonable grounds to think that at this stage when the investigation is in progress, as to whether there are reasonable grounds to believe that he is not guilty.
11. I have no doubt that this is not the stage in which such a conclusion can be arrived at. At the same time, I have every reason to think that Section 50 of the NDPS Act was not complied by the detecting officer. It is evident from the case diary and material records, that the Circle Inspector, who is the Station House Officer had reached in front of Laa Roza Boutique at 7.30 p.m. on being alerted by Sub Inspector Gladston. The said Gladston was given intimation by Grade S.I. Suvrathakumar. When the detecting B.A. No.3159/2021 8 officer and party had reached the place of occurrence, the said Suvrathakumar and other members of the DANSAF were present. They had already seen the petitioner being in possession of so much quantity of MDMA and LSD in his right folded hand. Immediately seeing the suspect, the Inspector also noticed him possessing three polythene covers containing white crystals and granules and another polythene cover containing stamp like item. He also realised that it is MDMA and LSD; sequences of events show that after finding the offensive articles in the folded palms, he had given oral as well as written notice intimating his right to be searched in the presence of a gazetted officer or Magistrate.
12. In other words, the detecting officer has no case that before opening his right folded palm, he had attempted to follow the procedural formalities. That means, section 50 was not complied by the detecting officer. It seems that he had issued written notice intimating his right to be searched in the presence of a gazetted officer or Magistrate as a prelude to make a further body search for ascertaining whether he had concealed more quantity of items in his person.
13. In the decision relied on by the learned counsel in Basant B.A. No.3159/2021 9 Balram, cited supra, in a similar background, a learned single Judge of this Court held that such a search and seizure are vitiated. The learned Judge has also considered the other authorities of the Supreme Court. I have no doubt that the principle of law laid by the learned single Judge can be followed in this case also. That means, for the present purpose, we cannot say that the detection was done following the procedural formalities. I do not want to say anything more on this aspect, at this stage.
14. Suffice it to say that the procedures have not been followed and there are reasons to think that the detection and arrest are vitiated. Without delving much, I think that the petitioner can be released on bail at this stage. I also take note of the fact that he does not have any criminal antecedents and therefore, ensuring his presence for further proceedings, he can be released on bail on the following conditions:-
i) The petitioner shall execute a bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties each for the like sum to the satisfaction of the jurisdictional court; one of the sureties shall be a near relative of the petitioner;
ii) He shall not try to contact or influence the witnesses or tamper with evidence;
iii) He shall not leave Thrissur revenue district without the leave B.A. No.3159/2021 10 of the jurisdictional court ;
iv) He shall not involve in any crime during the period on bail;
v) He shall appear before the investigating officer/trial court as and when required;
vi) He shall surrender his passport before the court within ten days of his release; in the event he does not possess a passport, shall file an affidavit to that effect within the said period;
vii) The petitioner shall strictly abide the various guidelines issued by the State and Central Governments with respect to keeping of social distancing in the wake of Covid 19 pandemic;
viii) If any of the above conditions are violated by the petitioner, the jurisdictional court will be at liberty to cancel the bail in accordance with law.
This bail application is allowed as above.
Sd/-
K. HARIPAL
JUDGE
okb/4.7
//True copy// P.S. to Judge